ILLEGAL PROSECUTIONS 


The Salesman’s Rights 


Under 


Federal and State Laws 


As applied to 

Interstate Commerce 


m 


Prepared bp 

BRYAN, McCORMICK & WILBER 
’’ Attorneys and Counselors at Law 
Chicago, Ill. 

For 

HITCHCOCK-HILL COMPANY 
Wholesale Grocers 
Kinzie and Dearborn Streets 
Chicago, Ill. 

Copyright 1920 

HtfMK-HILt GO,, A CORPORATION 

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INSTRUCTIONS TO AGENTS. 


* the object of this brief is to place before our several 
agents a knowledge of their legal rights, we deem it ad¬ 
visable to prefix to this brief advice as to the manner of 
handling individual cases. 

Should you be arrested, or where knowledge comes to 
you that the authorities—state or municipal—are threaten¬ 
ing your arrest for violation of some of these statutes or 
ordinances, seek the source of the action. When you have 
found it, follow instructions contained on Page 27 of this 
brief. 

You are advised that there are two ways of testing the 
validity of any action under these statutes or ordinances. 
The first is to engage counsel and contest the court’s right 
to impose a fine, using this brief as enunciating the true 
law on the subject. If a fine is imposed, an appeal should 
be taken to the next highest court, and subsequent appeals 
should be taken until a favorable decision is obtained. The 
second remedy, and probably the most feasible, if it can 
be pursued, is to have your attorney sue out a writ of 
habeas corpus. This writ must be issued from a court of 
record, and it brings directly into question the validity of 
the statute or ordinance under which you have been ar¬ 
rested. Possibly a contest over the matter can be mutually 
arranged with the authorities so that you need not be 
actually incarcerated. 

It is hoped, however, that by a vigorous resistance on 
your part in the event there arises any threat of arrest, 
you will, by the aid of this brief, be able to convince the 
authorities that their contemplated action is illegal and can 
only subject them for a bill for costs and the possibility of 
a suit for damages against either the officials or the party 
who swears out the warrant. 

Great care should be exercised in the selection of coun¬ 
sel and definite arrangements made for his fees. Counsel 
should understand that any contract for the payment of 
fees for representation should be confirmed by us, by letter 
or telegram, before becoming binding upon us. 

HITCHCOCK-HILL COMPANY, 

Wholesale Grocers, 

Chicago, Ill. 


Hitchcock-Hill Company, a corporation, is engaged in 
the wholesale grocery business in the City of Chicago, Illi¬ 
nois. It sells its merchandise in wholesale quantities di¬ 
rect to consumers and users. 

The company employs a large number of salesmen, 
whose occupation is to travel from place to place in various 
states, take orders for this merchandise which they send 
by mail to the company at Chicago, and the goods to fill 
such orders are shipped from Chicago. 

In the month of January, 1918, Albert Trondson, a 
traveling salesman in the employ of the company, engaged 
in the occupation heretofore stated, was arrested by the 
authorities in Bainville, Montana, charged with having 
violated an ordinance of that municipality, the pertinent 
part of which is as follows: 

“Section 1. No person or persons, firm, or 
corporation shall carry on or engage in any of 
the following industries, pursuits, occupations 
and professions in the town of Bainville with¬ 
out a license therefor from said town. 

Section 2. Every person, firm, or corpora¬ 
tion carrying on any business, profession, or in¬ 
dustry in the town of Bainville on or after this 
Ordinance shall become effective shall at the be¬ 
ginning of every six months procure from the 
town treasurer at his place of business a license 
to carry on such business, profession or industry 
as he, she or they may engage in, and the rate of 
such licenses shall be as follows: 

1. Peddlers or salesmen selling clothing, dry 
goods, groceries, or merchandise of any kind at 
retail from sample or otherwise, or toilet articles 
and like merchandise from sample or otherwise 
—$5.00 per day. 

Section 3. Any person, firm or corporation 
who shall transact any business, trade, occupa¬ 
tion, industry or profession for which license is 
required by this Ordinance without first secur¬ 
ing a license therefor as provided herein shall 
be deemed guilty of a violation of this Ordi¬ 
nance, and upon conviction thereof shall be fined 
not less than $5.00 nor more than $100.00, to 
which shall be added the amount due from such 
person, firm or corporation for such license. 


— 2 — 


Section 4. No license shall be required from 
or of any person for selling any production of 
this state, raised or manufactured by himself, 
except as in this Ordinance. 

Section 5. No license shall be issued until 
the money required therefor shall have been paid 
to the town treasurer. 

Section 6. This Ordinance No. 6 of this 
town of Bainville shall take effect on the first 
day of. ” 

Without knowledge of his legal rights, and without 
consulting counsel, he submitted himself to the jurisdiction 
of the Justice Court under whose process he was arrested, 
and after the evidence was heard he was fined $20 and 
costs, which fine he paid, and then reported the circum¬ 
stances of his arrest and conviction to his employers at 
Chicago. 

The act of the authorities of Bainville, Montana, was 
in violation of the Constitution of the United States. It 
was wholly illegal. 

The purpose, therefore, of this opinion and brief, is to 
acquaint our several salesmen with knowledge of their 
constitutional rights in cases of this character. 

OPINION AND BRIEF. 

I. 

Section 8, of Article 1, of the Constitution of the United 
States provides: 

The Congress shall have power * * * 
Third. To regulate commerce with foreign na¬ 
tions, and among the several states and with 
the Indian tribes. 

Section 1, of Article 14, of the Federal Constitution, 
reads as follows: 

All persons born or naturalized in the United 
States and subject to the jurisdiction thereof 
are citizens of the United States and of the State 
wherein they reside. No State shall abridge the 
privileges or immunities of citizens of the United 
States; nor shall any State deprive any person 
of life, liberty or property without due process 
of law, nor deny to any person within its juris¬ 
diction the equal protection of the laws. 


— 3 — 



All persons born or naturalized and subject to the jur¬ 
isdiction are citizens of the United States. 

Under the last mentioned clause it will be seen that no 
state has authority to put a special tax on or abridge the 
rights of a class of citizens, or in any way or form bar them 
from the right and privilege of practicing their honorable 
and useful callings in any state where they may see fit and 
proper to exercise them for an honest living. 

The business being transacted by Hitchcock-Hill Com¬ 
pany, through its salesman Mr. Trondson, was Interstate 
Commerce, because the goods, when sold, were in another 
state and were shipped from another state into the state of 
Montana. That transactions of this character are Inter¬ 
state Commerce is beyond question and should require no 
argument. As the Constitution of the United States has 
reserved to Congress the sole and only right to regulate 
Interstate Commerce, it follows as a matter of law that no 
State or Municipality has any right whatever to pass any 
law or ordinance that would directly or indirectly be a tax 
on the conduct of such a business. If such laws or ordi¬ 
nances are enacted all prosecutions for an alleged viola¬ 
tion thereof are wholly illegal. 

It has been decided in a great many cases that ordi¬ 
nances of cities, towns or villages, providing that no person 
shall sell or attempt to sell any goods, articles or things by 
peddling, soliciting, hawking, public outcry, or at any tem¬ 
porary or undisclosed stand or place of business within 
the Municipality, without first obtaining a peddler’s license 
therefor * * * are void, in respect to Interstate Com¬ 

merce business, as being in contravention of the Federal 
Constitution, vesting in Congress the authority to regulate 
commerce between the several states. 

State statutes in effect providing that drummers and 
all persons not having a regular house of business and of¬ 
fering for sale or selling goods, wares or merchandise 
therein by sample, shall be required to pay to the County 
or the taxing district a certain sum of money for the ex¬ 
ercise of such privilege, are, likewise, in violation of the 
Federal Constitution, giving Congress the exclusive power 
to control and legislate in regard to Interstate Commerce. 


The leading case on the subject is Robbins vs. Taxing 
District of Tennessee, 120 U. S., 489, and as this case was 
decided over thirty years ago it is somewhat astonishing 
that in this enlightened time we should still find an attempt 
to enforce such statutes or ordinances in the manner at¬ 
tempted in the action against Trondson, which is the sub¬ 
ject of this brief and opinion. This decision of the United 
States Supreme Court controls all the law on the subject, 
and for the purpose of getting clearly before the mind of 
the reader what that law is, we shall elaborate somewhat 
on the facts. 

Robbins was engaged in the City of Memphis, State of 
Tennessee, in soliciting the sale of goods for the firm of 
Rose Robbins & Co. of Cincinnati, Ohio, dealers in paper 
and other articles of stationery, and exhibited samples for 
the purpose of effecting such sales—an employment usually 
denominated as that of a drummer. There was in force 
at that time (1884) a state statute relating to the subject of 
taxation in the taxing districts of the state, applicable, how¬ 
ever, only to the taxing district of Shelby County, formerly 
the City of Memphis, by which it was enacted amongst 
other things that 

“All drummers and all persons not having a 
regular licensed house of business in the taxing 
district, offering for sale or selling goods, wares 
or merchandise therein by sample, shall be re¬ 
quired to pay to the County Trustee the sum of 
$10.00 per week, or $25.00 per month, for such 
privilege, and no license shall be issued for a 
longer period than three months.” 

The business of selling by sample, and nearly sixty 
other occupations, were by this statute declared to be privi¬ 
leges, and were taxed as such, and it was made a misde¬ 
meanor, punishable by a fine of not less than $5.00 or more 
than $50.00, to exercise any of such occupations without 
having first paid the tax or obtained the license required 
therefor. 

Under this law Robbins, who had not paid the tax, or 
taken out the license, was arrested, prosecuted, convicted 
and sentenced to pay a fine of $10.00, together with the 
State and County tax and costs. On appeal to the Supreme 


— 5 — 


Court of Tennessee the judgment was affirmed, and a writ 
of error was sued out of the Supreme Court of the United 
States to review the judgment of the State Supreme Court 
on the ground that the law imposing the tax was repug¬ 
nant to that clause of the Constitution of the United States 
which declares that Congress shall have power to regulate 
commerce between the several states. The Supreme Court 
of the United States held the law to be unconstitutional, 
and we quote from the opinion: 

“That is the question before us, and it is one of great 
importance to the people of the United States, both as re¬ 
spects their business interests and their constitutional 
rights. It is presented in a nut shell and does not at this 
day require for its solution any great elaboration of argu¬ 
ment or review of authorities. Certain principles have 
been already established by the decisions of this court which 
will conduct us to a satisfactory decision. Among those 
principles are the following: 

(1) The Constitution of the United States having 
given to Congress the power to regulate commerce, not 
only with foreign nations but among the several states, 
that power is necessarily exclusive whenever the subjects 
of it are national in their character, or admit only of one 
uniform system or plan of regulation. This was decided 
in the case of Cooley v. Board of Wardens of the Court of 
Philadelphia, 12 Howard (U. S.) 299 and 319, and was 
virtually involved in the case of Gibbons v. Ogden, 9 
Wheat. 1, and has been confirmed in many subsequent 
cases; among others in 

Brown v. Maryland, 12 Wheat., 419. 

Passenger Cases, 7 How., 283. 

Crandall v. Nevada, 6 Wall, 35, 42. 

Ward v. Maryland, 12 Wall, 418, 430. 

State Freight Tax Cases, 15 Wall, 232, 279. 

Henderson v. Mayor of New York, 92 U. S., 259, 272. 

Railroad Co. v. Housen, 95 U. S., 465, 469. 

Mobile v. Kimball, 102 U. S., 691, 697. 

Gloucester Ferry Co. v. Pennsylvania, 114 U. S., 196, 203. 

Wabash R. R. Co. v. Illinois, 118 U. S., 557. 


— 6 — 


(2) Another established doctrine of this court is that 
where the power of Congress to regulate is exclusive, the 
failure of Congress to make express regulations indicates 
its Will that the subject shall be left free from any restric¬ 
tions or impositions; and any regulation of the subject by 
the states, except in matters of local concern only, as here¬ 
inafter mentioned, is repugnant to such freedom. This 
was held by Mr. Justice Johnson in Gibbons v. Ogden, 9 
Wheat, 1, 222; by Mr. Justice Grier in the Passenger Cases, 
7 How., 283, 462 and has been affirmed in subsequent cases. 

State Freight Tax Cases, 15 Wall, 232, 279. 

Railroad Co. v. Husen, 95 U. S., 465, 469. 

Welton v. Missouri, 91 U. S., 275, 282. 

County of Mobile v. Kimball, 102 U. S., 691, 697. 

Brown v. Houston, 114 U. S., 622, 631, 5 Sup. Ct. Rep., 
1091. 

Walling v. Michigan, 116 U. S., 446, 455, 6 Sup. Ct. Rep., 
454. 

Pickard v. Pullman Palace Car Co., 117 U. S., 34, 6 Sup. 
Ct. Rep., 635. 

Wabash R. Co. v. Illinois, 118 U. S., 557, 7 Sup. Ct., 
Rep., 4. 

(3) It is also an established principle as already indi¬ 
cated, that the only way in which commerce between the 
states can be legitimately affected by state laws is when, by 
virtue of its police power and its jurisdiction over persons 
and property within its limits, a state provides for the se¬ 
curity of the lives, limbs, health and comfort of persons, 
and the protection of property, or when it does those things 
which may otherwise incidentally affect commerce, such aS 
the establishment and regulation of highways, canals, rail¬ 
roads, wharves, ferries and other commercial facilities; the 
passage of inspection laws to secure the due quality and 
measure of products and commodities; the passage of laws 
to regulate or restrict the sale of articles deemed injurious 
to the health or morals of the community; the imposition 
of taxes upon persons residing within the state or belong¬ 
ing to its population, and upon avocation or employments 
pursued therein, not directly connected with foreign or in¬ 
terstate commerce, or with some other employment or busi- 


— 7 — 


ness exercised under authority of the constitution and laws 
of the United States, and the imposition of taxes upon all 
property within the state mingled with and forming part 
of the great mass of property therein. But, in making such 
internal regulations, a state cannot impose taxes upon 
persons passing through the state, or coming into it merely 
for a temporary purpose, especially if connected with inter¬ 
state or foreign commerce; nor can it impose such taxes 
upon property imported into the state from abroad, or from 
another state, and not yet become part of the common mass 
of property therein; and no discrimination can be made by 
any such regulations adversely to the persons or property 
of other states; and no regulations can be made directly 
affecting interstate commerce. Any taxation or regulation 
of the latter character would be an unauthorized interfer¬ 
ence with the power given to congress over the subject. 
For authorities on this last head it is only necessary to re¬ 
fer to those already cited. In a word, it may be said that, 
in the matter of interstate commerce, the United States are 
but one country, and are and must be subject to one system 
of regulations, and not to a multitude of systems. The 
doctrine of the freedom of that commerce, except as regu¬ 
lated by Congress, is so firmly established that it is un¬ 
necessary to enlarge further upon the subject. 

In view of these fundamental principles, which are to 
govern our decision, we may approach the question sub¬ 
mitted to us in the present case, and inquire whether it is 
competent for a state to levy a tax or impose any other 
restriction upon the citizens or inhabitants of other states 
for selling or seeking to sell their goods in such state be¬ 
fore they are introduced therein. Do not such restrictions 
affect the very foundation of interstate trade? How is a 
manufacturer or a merchant of one state to sell his goods 
in another state, without, in some way, obtaining orders 
therefor. Must he be compelled to send them at a venture, 
without knowing whether there is any demand for them? 
This may, undoubtedly, be safely done with regard to some 
products for which there is always a market and a demand, 
or where the course of trade has established a general and 
unlimited demand. A raiser of farm produce in New Jer¬ 
sey or Connecticut, or a manufacturer of leather or wooden- 


— 8 — 


ware, may, perhaps, safely take his goods to the city of 
New York, and be sure of finding a staple and reliable mar¬ 
ket for them. But there are hundreds, perhaps thousands, 
of articles which no person would think of exporting to 
another state without first procuring an order for them. 
It is true, a merchant or manufacturer in one state may 
erect or hire a warehouse or store in another state, in which 
to place his goods, and await the chances of being able to 
sell them; but this would require a warehouse or store in 
every state with which he might desire to trade. Surely, 
he cannot be compelled to take this inconvenient and ex¬ 
pensive course. In certain branches of business, it may be 
adopted with advantage. Many manufacturers do open 
houses or places of business in other states than those in 
which they reside, and send their goods there to be kept on 
sale; but this is a matter of convenience, and not of com¬ 
pulsion, and would neither suit the convenience nor be 
within the ability of many others engaged in the same kinds 
of business, and would be entirely unsuited to many 
branches of business. In these cases, then, what shall the 
merchant or manufacturer do, who wishes to sell his goods 
in other states? Must he sit still in his factory or ware¬ 
house, and wait for the people of those states to come to 
him? This would be a silly and ruinous proceeding. The 
only other way, and the one, perhaps, which most exten¬ 
sively prevails, is to obtain orders from persons residing 
or doing business in those other states. But how is the 
merchant or manufacturer to secure such orders? If he 
may be taxed by such states for doing so, who shall limit 
the tax? It may amount to a prohibition. To say that 
such a tax is not a burden upon interstate commerce, is to 
speak at least unadvisedly, and without due attention to the 
truth of things. It may be suggested that the merchant or 
manufacturer has the postoffice at his command, and may 
solicit orders through the mails. We do not suppose, how¬ 
ever, that any one would seriously contend that this is the 
only way in which his business can be transacted without 
being amenable to exactions on the part of the state. Be¬ 
sides, why could not the state to which his letters might 
be sent, tax him for soliciting orders in this way, as well as 
in any other way? The truth is, that in numberless in- 


- 9 - 


stances, the most feasible, »if not the only practicable, way 
for the merchant or manufacturer to obtain orders in other 
states is to obtain them by personal application, either by 
himself or by some one employed by him for that purpose; 
and in many branches of business he must necessarily ex¬ 
hibit samples for the purpose of determining the kind and 
quality of the goods he proposes to sell, or which the other 
party desires to purchase. But the right of taxation, if it 
exists at all, is not confined to selling by sample. It em¬ 
braces every act of sale, whether by word of mouth only, 
or by the exhibition of samples. If the right exists, any 
New York or Chicago merchant, visiting New Orleans or 
Jacksonville for pleasure or his health, and casually taking 
an order for goods to be sent from his warehouse, could be 
made liable to pay a tax for so doing, or be convicted of a 
misdemeanor for not having taken out a license. The right 
to tax would apply equally as well to the principal as to his 
agent, and to a single act of sale as to a hundred acts. 

But it will be said that a denial of this power of taxa¬ 
tion will interfere with the right of the state to tax business 
pursuits and callings carried on within its limits, and its 
right to require licenses for carrying on those which are 
declared to be privileges. This may be true to a certain 
extent, but only in those cases in which the states them¬ 
selves, as well as individual citizens, are subject to the re¬ 
straints of the higher law of the constitution; and this in¬ 
terference will be very limited in its operation. It will only 
prevent the levy of a tax, or the requirements of a license, 
for making negotiations in the conduct of interstate com¬ 
merce; and it may well be asked where the state gets au¬ 
thority for imposing burdens on that branch of business 
any more than for imposing a tax on the business of im¬ 
porting from foreign countries or even on that of postmas¬ 
ter or United States Marshal. The mere calling the busi¬ 
ness of a drummer a privilege, cannot make it so. Can the 
state legislature make it a Tennessee privilege to carry on 
the business of importing goods from foreign countries? 
If not, has it any better right to make it a state privilege 
to carry on interstate commerce? It seems to be forgotten 
in argument that the people of this country are citizens of 
the United States, as well as of the individual states, and 


— 10 — 


that they have some rights under the constitution and laws 
of the former, independent of the latter, and free from any 
interference or restraint from them. To deny to the state 
the power to lay the tax or require the license in question, 
will not, in any perceptible degree, diminish its resources, 
or its just power of taxation. It is very true that if the 
goods when sold were in the state, and part of its general 
mass of property, they would be liable to taxation; but 
when brought into the state in consequence of the sale, they 
will be equally liable; so that, in the end, the state will de¬ 
rive just as much revenue from them as if they were there 
before the sale. As soon as the goods are in the state, and 
become part of its general mass of property, they will be¬ 
come liable to be taxed in the same manner as other prop¬ 
erty of similar character, as was distinctly held by this court 
in the case of Brown v. Houston, 114 U. S., 622, 5 Sup. Ct. 
Rep., 1091. When goods are sent from one state to another 
for sale, or in consequence of a sale, they become part of 
its general property, and amenable to its laws: provided 
that no discrimination be made against them as goods from 
another state, and that they be not taxed by reason of 
being brought from another state, but only taxed in the 
usual way as other goods are. Brown v. Housten, qua. 
supra.; Machine Co. v. Gage, 100 U. S. 676. But to tax 
the sale of such goods or the offer to sell them, before they 
are brought into the state, is a very different thing, and 
seems to us clearly a tax on interstate commerce itself. 

It is strongly urged, as if it were a material point in the 
case, that no discrimination is made between domestic and 
foreign drummers,—those of Tennessee and those of other 
states; that all are taxed alike. But that does not meet the 
difficulty. Interstate Commerce cannot be taxed at all, 
even though the same amount of tax should be laid on 
domestic commerce, or that which is carried on solely 
within the state. This was decided in the case of State 
Freight Tax Cases, 15 Wall, 232. The negotiation of sale3 
of goods which are in another state, for the purpose of in¬ 
troducing them into the state in which the negotiation is 
made, is interstate commerce. A New Orleans merchant 
cannot be taxed there for ordering goods from London or 
New York, because, in the one case, it is an act of foreign, 


- 11 - 


and, in the other, of interstate commerce, both of which are 
subject to regulation by Congress alone. It would not be 
difficult, however, to show that the tax authorized by the 
state of Tennessee in the present case is discriminative 
against the merchants and manufacturers of other states. 
They can only sell their goods in Memphis by the employ¬ 
ment of drummers and by means of samples; while the mer¬ 
chants and manufacturers of Memphis, having regular li¬ 
censed houses of business there, have no occasion for such 
agent, and, if they had, they are not subject to any tax 
therefor. They are taxed for their licensed houses, it is 
true; but so, it is presumable, are the merchants and manu¬ 
facturers of other states in the places where they reside; 
and the tax on drummers operates greatly to their disad¬ 
vantage in comparison with the merchants and manufac¬ 
turers of Memphis. And such was undoubtedly one of its 
objects. This kind of taxation is usually imposed at the 
instance and solicitation of domestic dealers as a means of 
protecting them from foreign competition; and in many 
cases there may be some reason in their desire for such 
protection. But this shows in a still stronger light the un¬ 
constitutionality of the tax. It shows that it not only 
operates as a restriction upon interstate commerce, but 
that it is intended to have that effect as one of its principal 
objects. And if a state can in this way, impose restrictions 
upon interstate commerce for the benefit and protection of 
its own citizens, we are brought back to the condition of 
things which existed before the adoption of the constitu¬ 
tion, and which was one of the principal causes that led to 
it. If the selling of goods by sample, and the employment 
of drummers for that purpose, injuriously affects the local 
interest of the states, Congress, if applied to, will undoubt¬ 
edly make such reasonable regulations as the case may de¬ 
mand. And Congress alone can do it; for it is obvious that 
such regulation should be based on a uniform system ap¬ 
plicable to the whole country, and not left to the varied, 
discordant, or retaliatory enactment of 40 different states. 
The confusion into which the commerce of the country 
would be thrown by being subject to state legislation on 
this subject would be a repetition of the disorder which 
prevailed under the articles of confederation. 


— 12 — 


To say that the tax, if invalid as against drummers from 
other states, operates as a discrimination against the drum¬ 
mers of Tennessee, against whom it is conceded to be valid, 
is no argument, because the state is not bound to tax its 
own drummers; and if it does so, while having no power to 
tax those of other states, it acts of its own free will, and 
is itself the author of such discriminations. As before said, 
the state may tax its own internal commerce; but that does 
not give it any right to tax interstate commerce. 

The judgment of the Supreme Court of Tennessee is re¬ 
versed, and the plaintiff in error must be discharged.” 

In 7 Cyc., 441, it is stated: “The states may control 
sales by peddlers who buy goods to sell on their own ac¬ 
count, or who, as agents, even for non-residents, sell goods 
which are in fact within the state at the time of sale, but 
sales, or the soliciting of sales by peddlers, commercial 
travelers or other agents, for non-residents, of goods in 
fact outside the state at the time of sale, are acts of inter¬ 
state commerce and beyond state influence.” 

In the case of State of Utah v. J. Bayer et al., 97 Pacific 
Reporter, 129, it was held, that a statute forbidding, with 
out license, the canvassing for or selling by sample of 
goods made in another state, after they have been shipped 
into the state passing the statute, ^hile permitting such 
canvassing for domestic goods, violates the commerce 
clause of the constitution. 

The overwhelming weight of the decisions support this 
rule. Although there are earlier cases in which statutes, 
providing for an occupation tax upon persons engaged in 
soliciting orders for goods to be delivered at a future time, 
were held to be constitutional as applied to persons obtain¬ 
ing orders for goods to be shipped from another state, it is 
now thoroughly settled that a statute or ordinance which 
is not indubtiably an exercise of the police power, and 
which in its operation imposes a burden upon the nego¬ 
tiation of sale of goods to be imported from another state, 
is obnoxious to the commerce clause. 

We will not attempt to review all of the United States 
Supreme Court cases, but we will now refer to a number of 
them as well as Federal and State Supreme Court decisions 
which we deem sufficient to sustain the rule. 


— 13 — 


In Asher v. Texas, 128 U. S., 129 (reversing 23 Texas 
App. 662), it was held, that the law of Texas requiring 
every commercial traveler or drummer, salesman or solic¬ 
itor of trade, by sample or otherwise, to obtain a license 
and to pay a tax therefor, was, when applied to citizens of 
other states soliciting trade in Texas, void as contravening 
the commerce clause of the federal constitution. 

In Stoutenburg v. Hennick, 129 U. S., 141, a statute 
imposing a license on persons whose business it is, as 
agents, to offer for sale goods, wares and merchandise, by 
sample, catalog, or otherwise, was held to constitute a 
regulation of interstate commerce so far as applicable to 
persons soliciting the sale of goods on behalf of individuals 
or firms doing business outside of the District of Columbia. 

In Brennan v. Titusville, 153 U. S., 289 (reversing 143 
Pa., 642), an ordinance requiring a license to be obtained 
by all persons canvassing or soliciting within the city, orders 
for goods, books, paintings, wares or merchandise of any 
kind, or persons delivering such articles under orders so 
obtained, or solicited; but providing that it should not ap¬ 
ply to persons selling by sample to manufacturers or li¬ 
censed merchants or dealers residing and doing business 
in the city, was held to be clearly not a mere police regula¬ 
tion, simply inconveniencing one engaged in interstate 
commerce, and so only indirectly affecting the business, 
but a direct charge and burden upon that business. This 
is another leading case. 

In Ex Parte Stockton, 33 Federal, 95, a Texas statute, 
requiring every commercial traveler soliciting trade by 
sample or otherwise, to pay an annual occupation tax, was 
held to be an unconstitutional interference with interstate 
commerce as applied to the citizens of another state having 
no goods in the state but selling by sample. 

In re Kimmel, 41 Federal, 775, a municipal ordinance 
requiring all persons engaged in going from house to house 
and selling or taking orders for any merchandise not of 
their own manufacture, to take out a license, was held to be 
repugnant to the commerce clause as applied to an agent 
engaged in selling goods to be shipped into the state from 
another state. 


— 14 — 


In re Housten, 47 Federal, 539, it was stated, that the 
mere solicitation of orders to be filled from another state, 
is within the protection of the commerce clause of the fed¬ 
eral constitution. 

In re Flinn, 5 7 Federal, 496, it was stated, that if a state 
statute was susceptible of construction as authorizing legal 
process to be issued for the collection of a penalty for the 
non-payment of taxes on sales by samples of goods not then 
within the state, then the act was a regulation of interstate 
commerce. 

In re Mitchell, 62 Federal, 576, a Wisconsin statute, 
imposing a license upon persons traveling from place to 
place for the sale of goods at retail or to consumers, by 
sample or otherwise, was held unlawfully to interfere with 
interstate commerce when attempted to be enforced against 
agents soliciting orders, by sample, for goods on behalf of 
a resident of another state, and to be delivered therefrom, 
and which were legitimate and proper articles of commerce. 

In Ex Parte Hough, 69 Federal, 330, a North Carolina 
statute, imposing a license tax upon every person, com¬ 
pany, or manufacturer who shall engage in the business 
of selling pianos or organs by sample, list, or otherwise, in 
the state, was held unconstitutional as a regulation of in¬ 
terstate commerce, as applied to the selling by sample for 
a manufacturer and dealer located in another state. 

In Hofschulte v. Doe, 78 Federal, 436, it was said that a 
municipal ordinance, imposing a license tax upon every 
person, firm or corporation who solicits orders for and sells 
to the inhabitants of the town, at retail, any books, goods, 
wares or merchandise, to be delivered to those who may 
purchase from said person, firm or corporation, at a time 
subsequent to the taking of said order, was invalid as being 
in contravention of the commerce clause of the federal 
constitution. 

In re Tinsman, 95 Federal, 648, a municipal ordinance, 
requiring persons engaged in the hawking, peddling, itiner¬ 
ant vending, or soliciting the sale or purchase of books, 
maps, or pictures, to take out a license and pay a tax, was 
held unconstitutional when enforced against a person or 
firm soliciting orders for a manufacturer of goods in an- 


— 15 — 


other state, being an exercise, not of the police power, but 
of the taxing power. 

In Coltam v. Oregon City, 98 Federal, 570, it was said 
that a municipal ordinance requiring all persons selling 
goods, or soliciting the sale of goods, to pay a license tax 
therefor, so far as it applies to persons soliciting the sale 
of goods in behalf of those doing business in another state, 
is a regulation of interstate commerce and void; but that 
such ordinance is not void if the solicitor carries his goods 
with him and thereby becomes a peddler, and so comes 
within the reach of the general or police power of the state. 

In Ex Parte Green, 114 Federal, 959, a municipal ordi¬ 
nance, imposing a license tax on “each itinerant person or 
peddler traveling from residence to residence soliciting or¬ 
ders for, or selling directly or indirectly, goods, wares or 
merchandise to the consumer” was held unconstitutional 
when applied to one engaged in soliciting orders on behalf 
of a principal in another state, who, after accepting them, 
shipped from such other state merchandise direct to the 
purchaser, the ordinance not being one which involves the 
mere exercise of the police power for the protection of the 
morals or health of the community, but a direct tax upon 
interstate commerce itself. 

In State v. Agee, 83 Ala., 110, 2 Inters. Com. Rep., 21, 
3 So., 856, a statute imposing a license tax on itinerant 
peddlers of fruit trees, vines, shrubs, etc., was held, as ap¬ 
plied to one selling by sample goods on behalf of an em¬ 
ployer in another state, to be unconstitutional as interfering 
with interstate commerce. 

In State ex rel. Sellinger v. O’Connor, 5 N. D., 629, 
67 N. W., 824, a statute providing: “It shall be unlawful 
for any person to travel from place to place in any county 
within this state for the purpose of carrying to sell or ex¬ 
posing or offering for sale, barter, or exchange at retail, 
any goods, wares, merchandise, notions, or other articles 
of trade whatsoever, except as hereinafter provided, 
whether by sample or otherwise, and whether such goods, 
wares, merchandise, notions or other articles of trade what¬ 
soever are delivered at the time of sale, or to be delivered 
at some future time, unless such person shall have first 


— 16 — 


obtained a license as a peddler as hereinafter provided,” 
was held to be, so far as it assumes to tax those who sell 
by sample goods to be shipped in from another state and 
thereafter delivered, an unlawful interference with the ex¬ 
clusive authority of Congress to regulate interstate com¬ 
merce ; and the unconstitutional portion of the act was held 
to be so inseparably interwoven with its other provisions 
as to render it wholly inoperative. 

In State v. Rankin, 11 S. D., 144, 76 N. W., 299, a statute 
imposing a license tax upon each peddler or solicitor taking 
orders for groceries, cloth, hardware, or other mercantile 
establishments was held to be unconstitutional as applied 
to persons soliciting orders for a concern in another state, 
as imposing a burden upon interstate commerce. 

In Wrought Iron Range Co. v. Johnson, 84 Ga., 754, 
8 L. R. A., 273, 3 Inters. Com. Rep., 146, 11 S. E. 233, it 
was held that one going from place to place with a sample 
stove, soliciting orders therefor, which were filled by ship¬ 
ment from another state, was protected by the commerce 
clause of the Federal Constitution against a state statute 
requiring a license to peddle. 

In accordance with the foregoing decisions, it was held 
in McClelland v. Marietta, 96 Ga., 749, 22 S. E., 329, that a 
city ordinance requiring a license to be obtained by persons 
soliciting orders within the corporate limits was uncon¬ 
stitutional as applied to a solicitor of orders on behalf of a 
nonresident corporation, which were filled from the home 
office. 

In re Kinyon, 9 Idaho, 642, 75 Pac., 268, 2 A. & E. Ann. 
Cas., 699, it was held that a statute providing for the licens¬ 
ing of peddlers, hawkers, and solicitors taking orders for 
goods is unconstitutional and an unwarranted interference 
with interstate commerce in so far as it attempts to im¬ 
pose such a burden upon the authorized solicitors and 
agents of citizens of other states trying to introduce and 
sell their goods in the state; but that a distinction might 
be made where the goods or property, at the time of the 
sale, are within the state and under the control of the agent 
or solicitor. 


— 17 — 


In Bloomington v. Bourland, 137 Ill., 534, 3 Inters. 
Com. Rep., 667, 13 Am. St. Rep., 382, 27 N. E. 692, a muni¬ 
cipal charter authorizing, and an ordinance imposing, a 
license tax upon hawkers, peddlers, and canvassers, was 
held, so far as operative upon persons soliciting orders for 
goods for a principal in another state, to violate the inter¬ 
state commerce clause. 

In Martin v. Rosedale, 130 Ind., 109, 29 N. E., 410, an 
ordinance making it unlawful for any traveling peddler to 
ply his avocation within the corporate limits of the town 
without first procuring a license was held, when applied 
to merchandise not in the state, owned by citizens of an¬ 
other state and sold in the state by sample, to be an inter¬ 
ference with interstate commerce. 

In Simmons Hardware Co. v. McGuire, 39 La. Ann., 848, 
2 So. 592, it was held that a statute requiring that “all 
traveling agents offering any species of merchandise in this 
state for sale, or selling the same by sample, or otherwise, 
shall pay * * * a license of $50,” was repugnant to the 

commerce clause, the negotiation of sales of goods which 
are in another state being interstate commerce. 

In People v. Bunker, 128 Mich., 160, 87 N. W., 90, a 
municipal ordinance imposing a license fee on persons go¬ 
ing about from place to place carrying with them any 
goods, wares, supplies, or property, or samples of the same, 
and selling or offering for sale the same, either by sample 
or otherwise, was held to be an unconstitutional interfer¬ 
ence with interstate commerce as applied to one soliciting 
orders for goods to be shipped into the state by a non¬ 
resident manufacturer. 

In Ex Parte Rosenblatt, 19 Nev. 439, 3 Am. St. Rep., 
901, 14 Pac., 298, a statute providing for the licensing of 
traveling merchants, and merchants doing business through 
soliciting agents commonly known as drummers, was held 
unconstitutional, for repugnancy to the commerce clause, 
as applied to one engaged in soliciting orders for goods to 
be delivered at a future time, from another state, by his 
principals, residents of that state. 

In State v. Bracco, 103 N. C., 349, 9 S. E., 404, a statute 
requiring drummers to obtain a license was held unconsti- 


— 18 — 


tutional, in so far as it applies to nonresident drummers, 
and all persons nonresident selling goods, wares, and mer¬ 
chandise by wholesale, or by sample in the state. 

In Port Clinton v. Shafer, 5 Pa. Dist. R., 583, it was held 
that an ordinance requiring all peddlers and persons can¬ 
vassing from house to house for the purpose of selling 
goods, to take out a license, was not rendered unobjection¬ 
able, as not imposing a restraint on interstate commerce, 
by the proviso that the ordinance should not be applicable 
to persons soliciting orders for the manufacture of goods 
manufactured beyond the boundaries of the state; the pro¬ 
viso not being wide enough in its scope to include all 
articles of interstate commerce. 

In Talbutt v. State, 39 Tex. Crim. Rep., 64, 73 Am. St. 
Rep., 903, 44 S. W., 1091, an occupation tax imposed on one 
engaged in soliciting orders for lightning rods, which he 
transmitted to his employer outside the state, who manu¬ 
factured them and shipped them into the state, the agent 
assisting in erecting them when required to do so, and 
collecting the money for the sale, was held to be an unlaw¬ 
ful interference with interstate commerce. 

In Harkins v. State (Tex. Crim. App.) 75 S. W., 26, it 
was held that an agent taking orders for ranges, to be filled 
from another state, is protected by the commerce clause 
from being held liable for a tax imposed on persons ped¬ 
dling out cooking stoves or ranges. 

In Com. v. Myer, 92 Va., 809, 31 L. R. A., 379, 23, S. E., 
915, it was held that the exemption of manufacturers who 
have paid taxes on capital employed, from the provisions of 
the statute imposing a license tax upon peddlers, renders 
the statute unconstitutional as the regulation of commerce 
when applied to a nonresident acting as an agent, or em¬ 
ployed in the sale of goods owned and manufactured by a 
nonresident corporation. 

In Clements v. Casper, 4 Wyo., 494, 35 Pac., 472, a 
municipal ordinance prohibiting any nonresident person 
from selling goods, by samples or otherwise, to others than 
regular merchants, without first obtaining a license there¬ 
for, was held to be an unconstitutional interference with 


— 19 — 


interstate commerce as applied to the taking of orders for 
goods which were filled from another state. 

In McLaughlin v. South Bend, 126 Ind., 471, 10 L. R. A., 
557, 26 N. E., 185, it was held that a municipal ordinance 
requiring traveling merchants and peddlers to obtain a 
license could not, in view of the interstate commerce clause, 
be enforced against a person canvassing for books to be 
delivered at a future time, which are owned and situated 
in another state. 

In Ft. Scott v. Pelton, 39 Kans., 764, 18 Pac., 954, it 
was held that an ordinance requiring book and map agents, 
and canvassers, to obtain a license, was not constitutionally 
applicable to persons canvassing by sample for goods to be 
brought from another state, the owner of the goods not 
residing in the state where the goods were offered for sale. 

In Richardson v. State (Miss.), 11 So., 934, a statute 
imposing a privilege tax on book agents was held uncon¬ 
stitutional as applied to the agent of a nonresident, en¬ 
gaged in negotiating sales and taking orders for the sale 
of books for future delivery, which were to be paid for on 
delivery by the purchaser. 

In Re White, 11 L. R. A., 284, 3 Inters. Com. Rep., 531, 
43 Federal, 913, an ordinance requiring a license from every 
person canvassing from house to house for the purpose of 
selling books, or soliciting orders, therefor, was held to 
interfere with interstate commerce, as applied to an agent 
engaged in soliciting orders for books for a principal in 
another state from which all orders were filled, the agent 
neither delivering the books nor collecting any money. 

In Re Julius, 26 Ohio C. C., 423, a municipal ordinance 
requiring a license to be obtained for canvassing for orders 
for the copying or enlarging of pictures, except the same 
should be the product of the canvasser’s own hands and the 
work done within the limits of the city, was held to inter¬ 
fere with interstate commerce as applied to the agent and 
employee of a nonresident person or corporation by whom 
the work was to be done out of the state. 

In State v. Scott, 98 Tenn., 254, 36 L. R. A., 461, 39 
S. W., 1, it was held that a privilege tax imposed on all 
persons, other than photographers of the state, engaged in 

— 20 — 


soliciting pictures to be enlarged, was not constitutionally 
applicable to one engaged in soliciting pictures to be en¬ 
larged outside the state. 

In ex parte Holman, 36 Texas Crim. Rep., 255, 36 S. W., 
441, a statute imposing a license tax for soliciting orders 
for photographs to be enlarged was held to be an uncon¬ 
stitutional interference with interstate commerce as applied 
to one soliciting orders for a concern in another state. 

In ex parte Hull, 153 Fed., 459, a statute imposing a 
license tax upon each person, firm, or corporation, either in 
person or through agents, who solicits orders for the en¬ 
largement of photographs, or for picture frames; but pro¬ 
viding that it should not apply to merchants or dealers 
having a permanent place of business in the state and keep¬ 
ing picture frames as a part or all of their stock in trade,— 
was held unconstitutional as imposing a burden on inter¬ 
state commerce. 


II. 

Nor is this rule of law changed by the delivery of the 
goods through an agent, as will be seen from the following 
cases: 

In ex parte Murray, 93 Ala., 78, 3 Inters. Com. Rep., 574, 
8 So., 868, it was held that a traveling agent for a resident 
of another state, who goes from house to house carrying 
his samples and obtaining orders, which he sends to his 
employer, who furnishes him goods to fill the orders, such 
agent delivering the goods in person and collecting the 
money therefor, charging a commission, cannot constitu¬ 
tionally be subjected to a license tax upon peddlers. 

In Kinsley v. Dyerly (Kan.) 98 Pac., 228, it was held 
that the right of a merchant of another state to sell his 
goods in the state carries with it the right to deliver them, 
and to employ for that purpose any agency he may deem 
proper, provided that at no time before the delivery the 
goods become so mingled with the common mass of prop¬ 
erty within the state as to deprive the transaction of its 
interstate features; and that therefore, in a prosecution for 
the violation of a city ordinance imposing a license tax 

— 21 — 


upon persons soliciting orders for the sale of goods, where 
it is shown that the defendant is the agent of a merchant 
of another state, and carries samples of goods and solicits 
orders, which he sends to his principal for approval, the 
mere fact that the principal, after accepting the order, ships 
the goods to the agent, with authority to deliver them to 
the purchaser and to collect the price, will not prevent the 
transaction from being interstate commerce. 

In Com. v. Baldwin, 29 Ky. L. Rep., 1074, 96 S. W., 
914, a revenue act imposing a license tax on solicitors or 
agents for the enlargement of pictures, or solicitors for 
picture frames or pictures, was held to be, as applied to 
agents of nonresidents of the state, soliciting orders to be 
filled in another state and delivered to the purchaser by an 
agent, a regulation of interstate commerce. 

In McClellan v. Pettigrew, 44 La. Ann., 356, 10 So. 853, 
it was held that a statute imposing a license tax on clock 
venders was unconstitutional as applied to an agent taking 
orders by sample, the clocks being thereafter shipped into 
the state to him for delivery; although it was said, if the 
clocks had been shipped into the state to remain there until 
a purchaser could be found there would be no doubt that 
they would then have been included in the general mass 
of the property of the state, subject to taxation. 

In Overton v. Vicksburg, 70 Miss., 558, 13 So. 226, a 
city ordinance requiring all transient peddlers to pay a 
privilege tax and to procure a license was held unconsti¬ 
tutional, so far as it is applied to an agent selling goods 
by sample for a principal in another state, who, upon re¬ 
ceipt of the order, ships the goods to the agent for delivery 
to the purchaser, from whom the agent collects the first 
instalment of the purchase money, which is applied as a 
part of his commission for making the sale. 

In Wrought Iron Range Co. v. Campen, 135 N. C., 506, 
47 S. E., 658, it was held that the exaction of a license tax 
imposed on every itinerant person peddling ranges, as a 
prerequisite to the exercise by a nonresident corporation 
of the right to sell its ranges in the state, was a violation 
of the commerce clause, where the sales were made by sam¬ 
ple and the goods were manufactured in another state, 


— 22 — 


shipped into the state, and delivered by the seller’s agent 
in the original package. 

In Hurford v. State, 91 Tenn., 669, 20 S. W., 201, a 
statute imposing a privilege tax upon the occupation of 
“sample sellers and solicitors” was held to be an unlawful 
regulation of interstate commerce so far as applied to non¬ 
residents engaged in taking orders for goods to be shipped 
to the buyer from a nonresident principal, whether such 
goods were shipped by mail, registered letter, or by ex¬ 
press, or delivered by the agent in person. 

In State ex rel. South Bend v. Glasby, 50 Wash., 598, 
97 Pac., 734, a municipal ordinance requiring a license fee 
to be paid by every person canvassing or taking orders for 
pictures, clothes, clothing, groceries, or other merchandise, 
either for immediate or future delivery, was held invalid 
as a regulation of interstate‘commerce, as to a traveling 
agent and solicitor for orders for groceries, which he trans¬ 
mits to his principals in another state, who are at liberty to 
accept and fill only such orders as they choose, whereupon 
the goods are shipped and delivered to the respective par¬ 
ties in unbroken packages by persons other than the travel¬ 
ing agents and solicitors securing the orders. 

In Chicago Portrait Co. v. Macon, 147 Fed., 967, a 
municipal ordinance imposing a license tax upon “peddlers 
or hawkers, meaning those who sell any article of mer¬ 
chandise, books, etc., or from house to house solicit orders 
therefor, whether sold direct or delivered at a later period,” 
was held unlawfully to interfere with interstate commerce 
where enforced against the agents of a nonresident cor¬ 
poration engaged in delivering completed pictures for which 
orders had been taken, sent to them for that purpose only. 

In ex parte Hull, 153 Fed., 459, a statute imposing a 
license tax upon each person, firm, or corporation soliciting 
orders for the enlargement of photographs of any char¬ 
acter, or for picture frames, was held invalid as applied to 
an agent of a foreign corporation who delivered pictures 
in frames, and collected the money due, on orders pre¬ 
viously taken by another agent and sent to the corporation 
outside the state to be filled. 


— 23 — 


III. 


And the law is the same even though shipment is made 
in bulk to the agent, as will be seen in the following cases: 

One of the latest leading cases on the subject is Stewart 
v. Michigan, 232 U. S., 665—34 S. C. R., 476, in which it 
was held that a State may not, consistently with the com¬ 
merce clause of the Federal constitution, impose a license 
tax upon a non-resident merchant traveling from place to 
place within the State and soliciting orders by sample, lists 
and catalogues for goods which are afterwards shipped into 
the State in carload lots to his order, and which he delivers 
from the cars to the persons ordering them. 

In Caldwell v. North Carolina, 187 U. S., 622, 47 L. ed., 
336, 23 Sup. Ct. Rep., 229, an ordinance requiring a license 
fee from persons engaged in selling or delivering picture 
frames or pictures was held invalid as an attempt to inter¬ 
fere with and regulate interstate commerce, as applied to 
an agent of a nonresident portrait company, who received 
from such company pictures and frames manufactured by 
it to fill orders previously obtained, and, after breaking 
bulk and placing each picture in the frame designed for it, 
delivered them to the respective purchasers. The court 
said: “The selection of the frame was as much a part of 
the purchase and sale as the selection of the picture. Nor 
does the fact that these articles were not shipped separately 
and directly to each individual purchaser, but were sent to 
an agent of the vender at Greensboro, who delivered them 
to the purchasers, deprive the transaction of its character 
as interstate commerce. It was only that the vendor used 
two instead of one agency in the delivery. It would seem 
evident that, if the vender had sent the articles by an ex¬ 
press company, which should collect on delivery, such a 
mode of delivery would not have subjected the transaction 
to state taxation. The same could be said if the vender 
himself, or by a personal agent, had carried and delivered 
the goods to the purchaser. That the articles were sent as 
freight by rail, and were received at the railroad station 
by an agent who delivered them to the respective purchas¬ 
ers, in no wise changes the character of the commerce as 
interstate/' 


— 24 — 


In Huntington v. Mahan, 142 Ind., 695, 51 Am. St. Rep., 
200, 42 N. E., 463, it was held that a city ordinance pro¬ 
hibiting peddling without a license was an unconstitutional 
interference with interstate commerce, where applied to a 
salaried agent of a publishing firm in another state, engaged 
in distributing to various purchasers books ordered through 
another agent, which had been shipped, in response to such 
orders, to a central point in the state, where they were 
repacked in parcels to suit the orders from various locali¬ 
ties, to which they were reshipped for distribution. 

In Turner v. State, 41 Tex. Crim. Rep., 545, 55 S. W., 
834, a statute imposing a tax upon the occupation of a 
traveling person engaged in selling patent and other medi¬ 
cines was held unconstitutional as applied to one employed 
by a non-resident concern, on salary, to sell goods by sam¬ 
ple, the orders secured being transmitted to the employer, 
subject to his approval, to be filled, whereupon the goods 
were shipped consigned to the employer, and delivered di¬ 
rect from the car, though the packages were not marked 
with the name of each purchaser. 

In re Spain, 14 L. R. A., 97, 3 Inters. Com. Rep., 738, 
47 Fed., 208, a statute imposing a license tax on peddlers 
was held to be an unconstitutional regulation of interstate 
commerce, as applied to persons engaged in showing sam¬ 
ples of goods manufactured by their principal in another 
state, and in taking orders for such goods, which are trans¬ 
mitted to the principal to be filled, even though in filling 
such orders the articles are sent in bulk to the agent, to be 
distributed by him. 

In Manke v. State, 70 Neb., 669, 97 N. W., 1020, it was 
held that an agent soliciting orders for groceries, and send¬ 
ing such orders to a non-resident corporation in another 
state to fill, such corporation thereupon putting up the 
several items of goods named in each order separately, 
shipping the same in a large box to its order, the agent 
receiving the same and delivering the goods therein con¬ 
tained to the persons from whom orders had been taken, 
receiving the money therefor, was engaged in interstate 
commerce within the meaning of the Federal Constitution, 
and therefore could not be subjected to a peddler’s license 
tax. 


— 25 — 


In Rearick v. Pennsylvania, 203 U. S., 507, 51 L. ed., 
295, 27 Sup. Ct. Rep., 159, it was held that interstate com¬ 
merce is unlawfully burdened by a municipal ordinance 
exacting a license fee from a person employed by a foreign 
corporation to solicit, within the municipality, orders for 
groceries which the company fills by shipping goods to him 
for the delivery to, and collection of the purchase price 
from, a customer, who has the right to refuse the goods if 
not equal to the sample, such goods always being shipped 
in distinct packages corresponding to the several orders, 
except in the case of brooms, which, after being tagged and 
marked like other articles, according to the number or¬ 
dered, are then tied together in bundles of about a dozen, 
and wrapped up conveniently for shipment. 

The rule, however, is changed where a sale is made of 
goods theretofore shipped into the state, which, by reason 
of having been taken from their original packages or from 
some other cause have ceased to be articles of interstate 
commerce, such transactions not being within the protec¬ 
tion of the commerce clause of the federal constitution. See 
Emert v. Missouri, 156 U. S., 296. 

IV. 

We have now reached a very important question to 
which we call the special attention of salesmen, as well as 
officials of states and municipalities. 

Can the officials who prosecute the case, or the party 
who swears out the warrant for your arrest under an un¬ 
constitutional law, be held liable for damages in an appro¬ 
priated action? 

The answer to this question depends on the facts in 
each particular case. If malice or an intention to do a 
wrong to another exist, the party or parties who commence 
and prosecute the action are liable to respond in damages. 

Malice in law means an act done wrongfully and wil¬ 
fully without reasonable or probable cause, and not neces¬ 
sarily an act done from ill-feeling or spite or a desire to 
injure another. Tucker v. Cannon, 32 Nebr., 444-446 (49 
N. W. 435). It is implied from wrongful and unjustifiable 


— 26 — 


acts done on purpose or without just or legal excuse. Mc¬ 
Grath v. State, 35 Tex. Cr., 413. 

That a person does not know the statute or ordinance 
under which he takes action is unconstitutional and void, 
furnishes no excuses, for all persons are presumed to know 
the law. Therefore, to the salesman who is or is about to 
be arrested and prosecuted under these void laws and or¬ 
dinances, we say it depends largely on how you act and 
what you say and do at the particular time, as to whether 
you lay the foundation for an action for damages for false 
arrest or malicious prosecution. If properly handled it can 
be done. 

We will presume that the officials or the complaining 
witness does not and never did know that the statute or 
ordinance under which he causes or proposes to cause your 
arrest is unconstitutional and void. Whether they have 
this knowledge or not, makes little difference. Hand the 
official this brief and opinion and specifically request him 
to read it and inform him that he will find almost all the 
courts in the land have pronounced such laws and ordi¬ 
nances unconstitutional and void when sought to be en¬ 
forced against a person engaged in your line of business. 
Suggest to him that if he does not understand it to ask his 
attorney or counsel before proceeding. Be specific to say 
to him or them, “Mr. Official, my business is interstate 
commerce. I am selling goods which are now in another 
state and which are to be transported from another state 
into your state, and the constitution of the United States 
prohibits you from interfering with me in the legitimate 
pursuit of that business. Moreover, the Supreme Court of 
the United States, also the Supreme Court of nearly every 
state in the Union, has declared such laws to be an inter¬ 
ference with interstate commerce and consequently void. 
If, therefore, after I have given you these facts and pro¬ 
vided you with the means of determining the legality of 
your action, you still persist in prosecuting me, then I shall 
regard your prosecution as being without just or legal ex¬ 
cuse and tainted with malice; and I will defend the action 
to the extent of my ability and upon a termination of the 
case in my favor will sue all parties for damages who have 
been connected with my prosecution.” 


— 27 — 


If this course is followed in a courteous, dignified man¬ 
ner, the probabilities are you will not be interfered with 
by arrest; but if arrested the author is satisfied that you 
have laid the foundation for an action for damages, in 
which event the following authorities may be considered 
as applicable to the case: 

A municipality itself will be held liable for an attempt 
to enforce a void ordinance. McGraw v. Marion, 98 Ky., 
673, 47 L. R. A., 593. 

A Justice of the Peace is liable for damages in a civil 
action because of the arrest of plaintiff on a warrant issued 
under an unconstitutional statute. Kelly v. Bemis, 4 Gray 
(Mass.), 83. 

And the officers who enforce the warrant or writ were 
also held liable. Fisher v. McGirr, 1 Gray (Mass.), 1. 

Parties who cause the issuance of a writ of attachment 
under an unconstitutional statute are liable for damages. 
Merritt v. St. Paul, 11 Minn. 223. 

The Nebraska Supreme Court affirmed a judgment of 
$2,500 damages against a complaining witness in an action 
for malicious prosecution and false imprisonment. There 
seems to have been no actual malice but plaintiff had been 
sent to an Industrial School as a result of proceedings un¬ 
der an unconstitutional statute. It was intimated in this 
case that the Judge of the County Court might also be held 
liable. Scott v. Flowers, 60 Nebr., 675, 84 N. W., 81. 

Municipal officers and other persons are liable for acts 
done under an act of the legislature which is unconstitu¬ 
tional and void. It is said that all persons are presumed to 
know the law and if they act under an unconstitutional 
enactment of the legislature, they do so at their peril and 
must take the consequences. Summer v. Beeler, 50 Ind., 
451, 19 Am. Dec., 718. 

A Sheriff is liable for damages for seizing falsely under 
an unconstitutional statute. Campbell v. Sherman, 35 Wis., 
103. 

The following unreported cases are known to have been 
decided in trial courts and are consequently here noted: 


— 28 — 


In 1894 a Magistrate in the Village of Polo, Ill., imposed 
a fine of $50 upon one, M. J. White, an agent traveling for 
the Grand Union Tea Company of Rockford, taking orders 
for their tea, coffee, spices, etc. The case was promptly 
appealed to the Circuit Court of Ogle County and was tried 
before Judge Crabtree, who decided the case without hear¬ 
ing much argument, holding the ordinance absolutely void. 
The court, in a very able opinion, held that the City of Polo 
had no power to pass an ordinance taxing persons taking 
orders for future delivery; that he could not see any dis¬ 
tinction whether the person taking the order made the de¬ 
livery or whether it was delivered by express. It was the 
opinion of the court that the ordinance of the City of Polo, 
if held valid, applied equally to all residents as well as non¬ 
residents, and every merchant of the state would have to 
pay the tax of $1 per day. The court further said that this 
was not a new question; that the principle involved in the 
case had been repeatedly decided against cities by the Su¬ 
preme Court of Illinois and other courts; and that no ordi¬ 
nance requiring a license fee of persons doing business in 
the manner it was done by the Grand Union Tea Co., is 
valid in the State of Illinois, on this broad ground,—that 
it is beyond the power of any city or village to pass such an 
ordinance. The law which is cited in this brief was held to 
be applicable to the case and the suit was dismissed with 
costs on the city. The author of this brief is informed that 
White settled his claim for damages outside the courts, as 
the officials of Polo were anxious to hush the matter up. 

The United States Circuit Court, sitting at Knoxville, 
Tenn., in January, 1894, awarded S. J. Singleton, of Eu¬ 
banks, Ky., $5,000 damages for false arrest, which sum the 
County of Hawkins, in the State of Tennessee, had to pay 
besides all costs. 

Singleton solicited orders for the enlargement of pic¬ 
tures for a Kentucky house. His effects were seized by 
the Sheriff of Hawkins County, Tennessee, and sold for 
the amount of the privilege tax, which Singleton refused 
to pay and was imprisoned. The Circuit Court held that 
the officials of Hawkins County violated the interstate com¬ 
merce law and awarded the damages to Singleton. 


— 29 — 


We have no doubt that there are reported cases in which 
the opposite view has been reached, but an analysis of those 
cases discloses the fact that it was impossible to prove the 
existence of malice, due, no doubt, to the manner in which 
the case was handled by the defendant at the time of his 
arrest. And for this very reason we have been specific to 
point out what should be said and done in order to properly 
lay the basis upon which to charge the officials or the com¬ 
plaining witness with having committed a wrong that was 
without just or legal excuses and tainted with malice. Why 
should this not be the rule? When you tell an official or 
complaining witness that you know his action is illegal, it 
first puts him on record and he should, even after that bare 
statement, act cautiously; but, when you have gone to the 
trouble and expense of furnishing him with a legal opinon 
supported by the decisions of the courts of last report, 
Federal and State, declaring similar prosecution unlawful, 
you have put the moving parties in a position where they 
are charged with direct knowledge of the fact that the action 
is illegal, and if they persist, they do so at their peril. 


HITCHCOCK-HILL COMPANY, 
Wholesale Grocers, 

Kinzie and Dearborn Sts., 
CHICAGO, ILL. 


By 

Bryan, McCormick & Wilber, 
Attorneys and Counselors at Law, 
CHICAGO, ILL. 


June 15th, 1918. 



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